Stritmatter Firm Amicus Brief in Seattle Childrens v. King 5

No. 81175-4-I (consolidated with No. 81295-5-I) ____________________________________________________________ COURT OF APPEALS, DIVISION I OF THE STATE OF WASHINGTON ____________________________________________________________ SEATTLE CHILDREN’S HOSPITAL, a Washington nonprofit corporation, Appellant, v.

KING COUNTY, a Washington municipal corporation; WASHINGTON STATE DEPARTMENT OF HEALTH; and KING BROADCASTING COMPANY and its affiliates, d/b/a KING 5, a Washington corporation, Respondents. ____________________________________________________________ STRITMATTER KESSLER KOEHLER MOORE’S AMICUS BRIEF IN SUPPORT OF KING BROADCASTING COMPANY’S RESPONSE ____________________________________________________________

STRITMATTER KESSLER KOEHLER MOORE Karen K. Koehler, WSBA #15325 Andrew Ackley, WSBA #41752 Garth L. Jones, WSBA #14795 3600 15th Ave. W., #300 Seattle, Washington 98119 Attorneys for Amicus Curiae Stritmatter Kessler Koehler Moore

TABLE OF CONTENTS I.

INTRODUCTION .......................................................................... 1

II.

STATEMENT OF CASE ............................................................... 3

III.

IV.

A.

Seattle Children’s failed to inform both the public and its own patients that it had a long history of vulnerable children contracting aspergillus infections while they were patients at Seattle Children’s Hospital. ............................... 3

B.

The families of the children who contracted aspergillosis at SCH filed a class action against SCH. ................................ 4

C.

Seattle Children’s Hospital has known about its aspergillus infestation for at least 20 years, if not longer, and it even secretly settled an aspergillosis lawsuit in 2008. .............. 11

ARGUMENT ................................................................................ 14 A.

Public disclosure of the investigative documents that SCH was required to file with state Department of Health is clearly in the public interest. ............................................. 14

B.

Public disclosure of the investigative reports and documents submitted to the Department of Health will prevent further harm to the parents of the children who either died or were permanently disabled by SCH’s coverup....................................................................................... 15

CONCLUSION ............................................................................. 17

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TABLE OF CONTENTS Cases Patnode ............................................................................................... 13, 15 Progressive Animal Welfare Socy v. Univ. of Wash., 125 Wn.2d 243,251, 884 P.2d 592 (1994)................................................................................ 3 Statutes RCW 42.56.030 ...................................................................................... 2, 3 Other Authorities Letter to W.T. Barry, Aug. 4, 1822, 9 The Writings of James Madison 103 (Gaillard Hunt ed., 1910 ......................................................................... 3

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I. INTRODUCTION Amicus curiae Stritmatter Kessler Koehler Moore (SKKM) joins in and fully supports the arguments raised by Respondent King Broadcasting Company (King 5) in its response to the Brief of Appellant Seattle Children’s Hospital (SCH).

Our state’s public policy regarding the

disclosure of public records and documents is clearly set forth in the preamble to the Public Records Act: The people of this state do not yield their sovereignty to the agencies that serve them. The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know. The people insist on remaining informed so that they may maintain control over the instruments that they have created. This chapter shall be liberally construed and its exemptions narrowly construed to promote this public policy and to assure that the public interest will be fully protected. In the event of conflict between the provisions of this chapter and any other act, the provisions of this chapter shall govern.

RCW 42.56.030.

Our Supreme Court has eloquently expressed the underlying purpose of the Act: The stated purpose of the Public Records Act is nothing less than the preservation of the most central tenets of representative government, namely, the sovereignty of the people and the accountability to the people of public officials and institutions. RCW 42.17.251. Without tools such as the Public Records Act, government of the people, by the people, for the people, risks becoming government of the people, by the bureaucrats, for the special interests.

In the famous words of James Madison, "A popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, 1

perhaps both." Letter to W.T. Barry, Aug. 4, 1822, 9 The Writings of James Madison 103 (Gaillard Hunt ed., 1910).

Progressive Animal Welfare Socy v. Univ. of Wash., 125 Wn.2d 243,251, 884 P.2d 592 (1994).

As RCW 42.56.030 makes clear, these fundamental principles shall govern “[i]n the event of conflict between the provisions of this chapter and any other act.” But despite this unambiguous directive, SCH is insisting that its interest in keeping the information in the records, reports and documents at issue in this case “private” outweighs the public interest in being fully informed about the aspergillus outbreaks that plagued SCH since 2001 and probably much longer before that. In fact, SCH claims that publicly disclosing these documents is “clearly not in the public interest” and that the public disclosure of these documents “would cause substantial and irreparable harm to any person or vital government interest.” See Seattle Children Hospital’s Corrected Brief of Appellant at pg. 41.

SKKM is filing this amicus brief because the actual facts belie SCH’s claims. As shown below, the disclosure of the documents sought

by King 5 is clearly in the public interest and SCH’s failure to publicly disclose these documents has already caused substantial and irreparable harm to the many children who have either died or suffered permanent disabilities due SCH’s failure to inform not only the public, but also its own patients, of its ongoing problems with the aspergillus mold.

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II. STATEMENT OF CASE A.

Seattle Children’s failed to inform both the public and its own patients that it had a long history of vulnerable children contracting aspergillus infections while they were patients at Seattle Children’s Hospital.

Aspergillosis is the group of infectious diseases caused by

exposure to aspergillus molds and fungi. For most people, exposure to these aspergillus molds and fungi is harmless.

But people with lung

disease or weakened immune systems – especially organ or stem cell transplant patients – are at higher risk of developing aspergillosis. This is particularly true in children who are immunocompromised. In these children, aspergillosis can spread from the victim’s lungs to other parts of the body including the brain, heart and kidneys and it can result in death or severe disabilities.

This is exactly what happened to a number of

immunodeficient children who contracted aspergillosis while they were surgery patients at SCH. As discussed more below, SCH repeatedly experienced outbreaks of aspergillus infections from 2001 to the present, with seven children dying from these infections and other children becoming seriously infected by their exposure to aspergillus mold. Although it was wellaware of these outbreaks, SCH suppressed this information from both the public and the medical community. As a result, none of the doctors who treated these very vulnerable children or their parents knew that SCH had a serious ongoing problem for at least 20 years (and probably much longer), with aspergillus mold that resulted in deadly breakouts of aspergillosis among the children hospitalized at SCH.

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B.

The families of the children who contracted aspergillosis at SCH filed a class action against SCH. Because SCH’s cover-up of its infestation of aspergillus mold and

fungi deprived both the treating doctors and parents of vulnerable children of the ability to make an informed decision about whether these children should be treated at SCH, a class action lawsuit against SCH was brought on behalf of the children who contracted aspergillosis while they were patients at SCH. The class representatives in this lawsuit are: Class Representative Estate of Logan Shaffer Sherry Shaffer is the personal representative of the estate of Logan Shaffer, her infant child who, while hospitalized at SCH in February 2005, contracted aspergillosis and died a month later from the infection. 0011

On February 5, 2005, Logan Shaffer was born with only half a heart. Logan’s physicians advised his parents, Sherry and Jim Shaffer, that there was a surgery which could be performed that would allow the right side of Logan’s heart to function as a whole heart. Logan’s parents

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could have chosen to have this procedure done at Stanford University Hospital. Instead, they chose to have this surgery performed at SCH. Logan underwent the surgery on February 10, 2005 and it was successful.

After recovering from the surgery, Logan was released from SCH and went home.

In a follow up examination to his surgery, doctors discovered that Logan had suffered a heart aneurism caused by an aspergillus infection.

Logan then returned to Seattle Children’s in March 2005. There, doctors found systematic bleeding throughout Logan’s body. Logan died from this aneurism on March 28, 2005.

Class Representative Estate of Aiden Wills Patrick Wills is the personal representative of the estate of his son, Aiden Wills, a three-year-old patient at SCH, who was hospitalized from August 2008 until his death in March 2009 from aspergillosis.

In August of 2008, Aiden was admitted as a patient at SCH because he suffered from hemophagocytic lymphohistiocytosis, a rare 5

disorder where the body makes too many immune cells. To correct this disorder, Aiden underwent a bone marrow transplant.

In January of 2009, doctors performed a bronchoaveolar lavage on Aiden; a procedure where a bronchoscope is passed into the lungs. Aiden was then diagnosed with an aspergillus fungal infection. This aspergillus infection created a dilemma for Aiden’s doctors as to how to treat him: [W]e are in a tougher spot than we have been. In the past a fungal infection post-transplant was a fatal condition.

However, we do now have medications that can treat fungal infections. The dilemma is that we must prioritize whether to treat the fungus of the VGHD most effectively. If we treat the GVHD (Acute Graft versus Host Disease) most aggressively with a steroid burst and possibly additional medications, we put Aiden at greater risk for the spread of his fungal infection. If we treat the fungus aggressively with immunosuppressants, then we risk a worsening of his GVHD. At present we are choosing to treat the fungus most aggressively with voriconazole and micafungin.

By February 17, 2009, the Aspergillis was “unchanged” and Aiden died on March 24, 2009.

Class Representative Whitney Stettler

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Whitney Stettler was a 17-year old teenager living in Alaska when she was diagnosed with Leukemia in 2011. Following this diagnosis, she flew to Seattle so that she could receive urgent care at SCH.

She

underwent surgery in the operating room of SCH where a port (central venous line) was placed.

Through the port she received life-saving

medication. The goal was to stabilize Whitney so that she could receive a bone marrow transplant.

After the port placement, Whitney became ill in a manner not associated with Leukemia or its treatment. Tests revealed the existence of aspergillus mold in her blood. Whitney went into a coma and remained in-patient for the next month until her condition stabilized. Whitney is now an adult residing in Battleground, Washington.

Class Representative Ana Christina Ventura Hernandez Norma Hernandez is the personal representative of the Estate of Ana Christina Ventura Hernandez, Norma’s sixteen-year old daughter, who contracted aspergillosis while hospitalized at SCH in November of 2014. A month later, Ana died from the infection.

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In 2014, 16-year old Ana Christina Ventura Hernandez was diagnosed with a brain tumor. Ana then underwent a successful surgery at SCH on November 8, 2014 to remove her tumor. After a week in the hospital, Ana returned to her home in Wenatchee.

After returning home, Ana became ill. Ana’s condition deteriorated and she was airlifted back to SCH on November 25, 2014. Her doctors did not understand why she was ill until they received the results of testing which revealed that Ana’s brain was infected with aspergillus. Ana died a month later after this on December 26, 2014.

Class representative Estate of Ian Gunnell Christopher Gunnell is the personal representative of the estate of Ian Gunnell, a 12-year old child who was hospitalized at SCH from August 2017 until his death on February 2019 from aspergillosis.

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In 2017, 11-year old Ian Gunnell had a previous diagnosis of blastic plasmacytoid dendritic cell neoplasm, a rare form of blood cell cancer. Ian’s parents, Christopher and Tanya Gunnell, admitted Ian to SCH for additional chemotherapy. On August 30, 2017, he underwent surgery in the operating room where a port (central venous line) was placed.

Within a few weeks of this surgery, one of his eyes began to swell.

By September 15, 2017, uncertain of what was causing the eye symptoms, doctors began performing tests and attempted to treat the unknown infectious disease process which later was verified as aspergillus. Ian complained of pain, subconjunctival hemorrhage was noted, and his eye was swollen shut. Doctors performed surgery to debride (scrape away) black necrotic debris down to bleeding tissue.

Exposure to aspergillus while he was being treated at SCH directly caused Ian’s severe eye infection and interfered with his cancer treatment.

Ian died February 15, 2019.

Class Representative Elizabeth Hutt Katha and Micah Hutt are the parents of Elizabeth Hutt, an infant with aspergillosis who has spent all but four days of her short life at SCH. Katha, who is the Personal Representative of Elizabeth’s estate brought an action on behalf of the Estate against SCH.

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On August 21, 2019, Elizabeth Hutt was born at Tacoma General Hospital with an underdeveloped left heart and other related conditions.

The next day, August 22, 2019, Elizabeth was transferred to SCH for treatment of her heart condition. Two days later, on August 26, 2019, Elizabeth underwent open heart surgery at SCH and developed a complication.

On November 7, 2019, Elizabeth underwent a second

surgery to address that issue.

During either or both of the August 26th or November 7th surgeries, Elizabeth became infected by aspergillus.

Elizabeth lived her entire life at SCH except for the date of her birth and a period of three days in October 2019 when SCH temporarily discharged her to live in the Ronald McDonald house. Exposure to aspergillus while she was at SCH directly caused Elizabeth’s aspergillus

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endocarditis and aspergillus mediastinitis that ended up taking her young life.

Elizabeth has undergone additional surgeries and is currently fighting for her life.

C.

Seattle Children’s Hospital has known about its aspergillus infestation for at least 20 years, if not longer, and it even secretly settled an aspergillosis lawsuit in 2008.

SCH has repeatedly experienced outbreaks of aspergillus

infections from the early 2000s to the present. As mentioned above, seven children have died from these infections and other children have suffered severe disabilities after becoming seriously infected by their exposure to aspergillus mold. One of the earliest cases of an aspergillus outbreak at SCH occurred in December of 2002 when 12-year old Jane Doe Patnode had a brain tumor surgically removed at SCH. The child survived the tumor removal, but developed aspergillosis in her brain and spine which rendered her permanently disabled. Her family sued SCH in 2005. The declarations from two experts in the Patnode case summarize the nature of Defendant’s failures regarding its air-handling systems.

Margaret Brown had a master’s degree in civil engineering and construction management, and had been a Navy civil engineer for 20 years. She had previously been a project manager at Fred Hutchison when they built the Seattle Cancer Care Alliance and she was the Director of Engineering at Harborview Medical Center. From October 2002 to March

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2003, Ms. Brown was retained by Seattle Children’s as a consultant for its Building & Engineering Department (B&E). Ms. Brown stated under oath on August 31, 2007 that: i.

She was advised by Defendant’s infection control staff that Aspergillus was a concern for the B&E Department.

ii.

The operating and maintenance manuals for the airhandling system had been missing for approximately one year.

iii.

The air-handling system was only repaired when it would breakdown.

iv.

Preventative maintenance of the air-handling system was not occurring.

v.

The air-intake systems were in poor condition and it appeared maintenance had not been performed for many years. Dead birds along with copious other debris were lodged in the screens. Air-handling unit water pans were filled with slimy water.

vi.

B&E employees had no air-handling education.

vii.

Overall Seattle Children’s B&E Department did not have employees with the skill and knowledge of other B&E staff she had worked with in the past.

viii.

She had grave concerns about how the hospital’s critical care systems impacted Seattle Children’s patient populations.

ix.

When she brought and explained these concerns to Seattle Children’s, it abruptly terminated her services.

Seattle Children’s hired Kenneth Johnson as an engineer in the B&E Department in April 1999.

He received a promotion to Lead

Engineer, but he left in September 2003. Mr. Johnson stated under oath that during his time there: 12

i.

All of the air-handling units were in a filthy condition.

Mold accumulated around fan coils and drain pans. Air intake screens were plugged with debris, including dead and live birds and bird droppings.

ii.

The only preventative maintenance performed was limited to changing filters on the air handling units.

iii.

It would have taken several years without maintenance for the system to deteriorate to this state.

iv.

Most of the time the air-handling units and fans had some form of water leak. This is because the system was “rotting out.”

v.

The B&E Department tried to put temporary patches on the problems.

vi.

The air-handling system was not tested.

vii.

The maintenance department was understaffed and needed additional funding to complete maintenance, make repairs, and provide for a computerized maintenance management system.

viii.

Seattle Children’s B&E Manager repeatedly expressed concerns in writing by email to Seattle Children’s.

In August 2008, the Patnode lawsuit ended in a secret settlement.

Maintaining it secretive stance, SCH did not advise its patients or the public that children admitted for surgery at SCH could have been, or could be exposed, to aspergillus mold through its air-ventilation system.

Despite its knowledge of its aspergillus problem, Seattle Children’s failed to take adequate steps to address the long-standing aspergillus contamination that had spread throughout its air ventilation system, including its failure to properly maintain this system and its failure 13

to test its premises for the presence of aspergillus mold spores. Nor did it take any steps to inform the public or its own patients about its ongoing problem with aspergillosis.

Again, as a result of this, none of the doctors who treated these children or their parents knew of these deadly breakouts of aspergillosis among the children hospitalized at SCH.

Instead, SCH covered this

information up. Had SCH been completely forthcoming about the extent of its aspergillus problem, as it should have been, these children would not have contracted aspergillosis because neither their doctors nor their parents would have ever consented to sending them to SCH. III. ARGUMENT A.

Public disclosure of the investigative documents that SCH was required to file with state Department of Health is clearly in the public interest.

In its Brief, SCH claims that publicly disclosing the investigative

documents that it was required to file with state Department of Health is “clearly not in the public interest” and that the public disclosure of these documents “would cause substantial and irreparable harm to any person or vital government interest.”

See Seattle Children Hospital’s Corrected

Brief of Appellant at pg. 41. By making these arguments SCH continues to pour salt into the wound and it is still trying to cover up the extent of its failure in dealing with its aspergillus crisis from the public by attempting to block the media from obtaining copies of these investigative reports and documents.

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As the facts of this case so vividly demonstrate, the full disclosure of these investigative reports and documents is clearly in the public interest. The public has a right to know about the nature and extent of the infectious aspergillus outbreaks at SCH. More importantly, the doctors who treat children at SCH and the parents of the children who were, and who are being treated there, have an absolute need to know that by treating these children at SCH they may be putting these vulnerable children in substantial risk of becoming infected with aspergillosis. Both these doctors and the parents also need to know that there is the very real possibility that this infection may maim a child for life or even kill the child. If protecting the life of a vulnerable child is not in the public interest it is hard to image what is.

B.

Public disclosure of the investigative reports and documents submitted to the Department of Health will prevent further harm to the parents of the children who either died or were permanently disabled by SCH’s cover-up.

SCH claims that public disclosure of the documents that it

submitted to the Department of Health would cause it “substantial and irreparable harm.” If the facts set forth above were not so tragic, this claim would be laughable. But, because these children and their parents have gone through the worst nightmare and hell that a family can go through, SCH’s claim is frankly pathetic.

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SCH claim of privilege in the information sought by King 5 in this case is novel. As the Health Officer of Public Health both for the City of Seattle and King County, Dr. Jeff Duchin had this to say about SCH’s privilege claim: At the start of the first day of the CDC meeting and site visit, hospital leaders at Children's announced to us all that Children's viewed the meeting as part of their quality improvement or QI process and that they considered the information that they were sharing to be protected by the QI privilege.

In the course of approximately 20 years of conducting public health disease investigations, this was the first time that a healthcare facility shared information relevant to the investigation while also declaring it to be QI privileged. ….

On behalf of Public Health, I ask the court to rule that the CDC report, and our other investigation-related documents, are records of a public health investigation, and therefore not privileged.

We routinely share with the public the type ofinfo1mation contained in the CDC report and our other investigative documents when requested. ….

[A]s the Health Officer, and on behalf of the local public health department, we have a responsibility, when requested, to provide the public with documents about our efforts to protect their health, including the occurrence and circumstances related to outbreaks of infections that are notifiable in Washington state.

Declaration of Jeff Duchin at pg. 4, lines 20-23, pg 5, lines 1-3 and lines 20-22, page 6, lines1-2 and lines 5-8.

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SCH’s attempt to prevent public access to the investigative reports is part of their continuing effort to cover up these aspergillus outbreaks.

Their cover-up caused the worse harm that a parent can ever go through, the death of a daughter or son. The harm that SCH inflicted on these families is far worse than any alleged harm conjured up by SCH. IV. CONCLUSION Given its history of non-disclosure and its cover up of this vital public health information, SCH cannot be trusted. Even though the public now has general knowledge of the aspergillus outbreaks at SCH, it is in the public interest that these documents and reports be made public so that SCH can be publicly monitored in its efforts to eliminate the aspergillus mold that has caused so much havoc in the lives of these families.

As a matter of principle, SCH should have voluntarily gone public with this information as soon as it recognized that children in its hospital were being infected with and dying from aspergillosis. Again, this would have allowed the parents of these children to make an informed decision as to whether they should consent to their child being treated at SCH. The same holds true for physicians considering whether to refer a child patient to SCH for treatment. Requiring full disclosure of the documents sought

by King 5 will help deter SCH and hospitals from engaging in this type of cover-up behavior in the future.

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The members of the plaintiffs’ class demand answers for the outbreaks of aspergillosis at SCH, which continued to recur for almost twenty years and claimed the lives and futures their children. They have a right to know why their children contracted aspergillosis and why many of their children so needlessly and painfully died. Their right to this information strongly outweighs any questionable technical privilege claimed by SCH, particularly in light of its shameful behavior in dealing with the public health crisis that it created.

DATED: June 8, 2020 Respectfully submitted,

/s/ Karen K. Koehler Karen K. Koehler, WSBA #15325 Andrew Ackley, WSBA #41752 Garth L. Jones, WSBA #14795 Of Stritmatter Kessler Koehler Moore Amicus Curiae

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CERTIFICATE OF SERVICE JESICA McCLURE certifies under penalty of perjury under the laws of the state of Washington that the following is true and correct.

I am employed as a Paralegal with the law firm Stritmatter Kessler Koehler Moore. On this day, June 8, 2020, I caused to be delivered a copy of the foregoing document and this Certificate of Service by email through the Court’s e-filing portal to the following: Adrian U. Winder, WSBA #38071 Andrea L. Bradford, WSBA # 45748 Foster Garvey PC 1111 Third Ave., Suite 3000 Seattle, WA 98101-3292 Email: adria.winder@foster.com andrea.bradford@foster.com Jack E. Bucknell, WSBA #30363 Assistant Attorney General of Washington 7141 Clearwater Drive SW P.O. Box 40109 Olympia, WA 98504-0109 Email: jack.bucknell@atg.wa.gov Howard Schneiderman, WSBA # 19252 King County Prosecuting Attorney's Office, Civil Division W 400, King County Courthouse 516 Third Ave. Seattle, WA 98104 Email: Howard.Schneiderman@kingcounty.gov Michele Earl-Hubbard, WSBA No. 26454 Allied Law Group LLC P.O. Box 33744 Seattle, WA 98133 Email: michele@alliedlawgroup.com DATED: June 8, 2020. /s/ Jesica A. McClure JESICA McCLURE, Paralegal

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